Floyd v. State , 72 Tex. Crim. 247 ( 1913 )

HARPER, Judge.

Appellant was prosecuted and convicted of the offense of murder, and his punishment assessed at imprisonment in the penitentiary for life.

No statement of- facts accompanies the record, consequently we can not say whether the charges requested should or should not have been given. Neither can we review those grounds in the motion complaining of the charge of the court. In the absence of a statement of facts we must and do presume that the court, charged the law applicable to the evidence introduced, and all the law necessary to be given. However, there are several bills of exception in the record in regard to the introduction of testimony. As to the testimony of the witness H. Baker, under the facts as stated by the court in approving the bill, it was clearly admissible as res gestae of the transaction. As to the testimony of Dr. Howard, which was excluded by the court, we do not think the court erred in permitting the county attorney to ask the questions he propounded to this witness and other witnesses. In our opinion, if the court correctly states the facts in approving the bills, the court was in error in excluding the testimony, and the county attorney was correct in insisting that the testimony was admissible as a dying declaration, and his persistence in trying to get it admitted would not present reversible error.

Several of the other bills copied in the record the court declined to approve, stating that no such objections were made, and the testimony was admitted without objection. It may be that counsel, after the trial of the case, decided that certain testimony ought not to have been admitted, but it is too late after verdict and judgment to raise the objections.

The judgment is affirmed.

Affirmed.